Clifton and Australian Postal Corporation (Compensation) - [2021] AATA 2886

Clifton and Australian Postal Corporation (Compensation) [2021] AATA 2886 (20 July 2021)
Division:GENERAL DIVISION
File Number(s): 2021/1136
Re:Chad Clifton
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

REASONS FOR DECISION
Tribunal:Senior Member C. J. Furnell
Date:20 July 2021
Date of written reasons: 17 August 2021
Place:Melbourne

Pursuant to a decision made on 20 July 2021, the Tribunal refused the Applicant’s application for an extension of time within which to lodge an application for review under section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth). The following are the written reasons for that decision.
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Senior Member C. J. Furnell
Catchwords
PRACTICE AND PROCEDURE – application for extension of time within which to lodge application for review – principles regarding whether extension should be granted – length of delay – explanation for delay – prejudice to Respondent or to public interest – merits of underlying application – extension of time application refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Antonious v Comcare [2018] AATA 3968
Australian Appaloosa Association Ltd v Australian Securities and Investments Commission [2018] AATA 3173
Brisbane South Regional Health Authority and Taylor (1996) 139 ALR 1
Budd and Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
BVG17 v BVH17 [2019] FCAFC 17
Comcare v A’Hearn (1993) 45 FCR 441
Custodial Limited and Australian Securities and Investments Commission (2005) 88 ALD 510
David v High Court [2009] AATA 448
DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10
Downing v Minister for Immigration and Border Protection [2019] FCA 1684
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 48 ALR 305
Hutchinson and Comcare (Compensation) [2018] AATA 4600
Lesianawai v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 896
Lucic v Nolan (1982) 45 ALR 411
Makarov v Minister for Home Affairs [2020] FCA 734
Matson v Australian Information Commissioner (No 2) [2021] FCA 690
Mason and John Holland Pty Ltd (Compensation) [2018] AATA 415
MZZFQ v Minister for Immigration and Border Protection [2016] FCA 1133
Newell and Secretary, Department of Social Services (Social Services Second Review) [2021] AATA 1102
Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109
Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 530
Saad v Secretary, Department of Social Services [2019] AATA 31
Secretary, Department of Family and Community Services and Roberts [2003] AATA 269
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 150
Social Security, Secretary, Department of Van Dan Boogaart (1995) 37 ALD 619
Swanton and Military Rehabilitation and Compensation Commission [2017] FCA 1142
SZTOR v Minister for Immigration & Border Protection [2019] FCA 349
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
SZUTY v Minister for Immigration and Border Protection (No 2) [2016] FCA 289
Twentyman v Secretary, Department of Social Services [2018] FCA 1892
Wekerle v Department of Home Affairs [2020] FCA 1300
Windram and Secretary, Department of Social Services (Social services second review) [2017] AATA 804
Zizza v Commissioner of Taxation [1999] FCA 848
REASONS FOR DECISION
Senior Member C. J. Furnell
17 August 2021

On 11 September 2020, a reviewable decision was made under the Safety, Rehabilitation and Compensation Act 1988 which affirmed a determination of 23 July 2020 to deny a liability to pay compensation to the applicant in respect of “an injury of left wrist, synovitis and carpal tunnel syndrome”.
The applicant applied to the Tribunal for review of that decision.
In that application, the applicant stated that he had received notice of the decision on 11 September 2020. Given this, the prescribed time for making the application expired on or around 11 November 2020.[1] The application was, however, not lodged with the Tribunal until 26 February 2021, roughly three-and-a-half months late.
[1] Administrative Appeals Tribunal Act 1975 (Cth) ss 29(1)(d) and 29(2) as varied by s 65(4) of the Safety, Rehabilitation and Compensation Act1988 (Cth).
The applicant applied to have the time for the making of his application extended.
A hearing of the extension of time application was held on 20 July 2021. At the conclusion of the hearing, I decided to refuse that application. I provided reasons for that decision, orally. I now provide them in writing, at the applicant’s request.
The Tribunal may extend the time for lodgement of an application for review if it “…is satisfied that it is reasonable in all the circumstances to do so.”[2]
[2] Administrative Appeals Tribunal Act 1975 (Cth) s 29(7).
Hence, the question in issue is whether I should be so satisfied in the case of the applicant’s extension application.
For the reasons which follow, I was not (and am not) so satisfied.
ISSUES TO BE CONSIDERED IN ADDRESSING THE QUESTION IN ISSUE
While certainly not exhaustive,[3] certain principles or criteria are often considered in the context of extension of time applications, whether made in the context of the Tribunal’s constituent legislation[4] or more generally.[5]
[3] Zizza v Commissioner of Taxation [1999] FCA 848 at [17].
[4] Australian Appaloosa Association Ltd v Australian Securities and Investments Commission [2018] AATA 3173 at [27]; Antonious v Comcare [2018] AATA 3968 at [10]-[11]; Saad v Secretary, Department of Social Services [2019] AATA 31 at [12]. See also Zizza v Commissioner of Taxation [1999] FCA 848 at [17].
[5] Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 48 ALR 305 at [349]-[350]; MZZFQ v Minister for Immigration and Border Protection [2016] FCA 1133 at [10]; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; BVG17 v BVH17 [2019] FCAFC 17 at [34].
First, it is “…a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained.”[6] Hence, it is for the person seeking an extension “…to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.”[7]
[6] Budd and Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 at [18] citing, and at [19] approving of, various principles articulated in Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109 at [10] which, in turn, was citing Lucic v Nolan (1982) 45 ALR 411 at 416.
[7] Brisbane South Regional Health Authority and Taylor (1996) 139 ALR 1 at 10 per McHugh J.
Second, while all the relevant circumstances are to be considered, the focus in these types of applications traditionally falls on several, particular, considerations.[8]
[8] See, for example, Downing v Minister for Immigration and Border Protection [2019] FCA 1684 at [5]; Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 150 at [9]; Matson v Australian Information Commissioner (No 2) [2021] FCA 690 at [118].
In Twentyman,[9] it was said that the “…principles governing the exercise of the Court’s discretion to grant an extension of time are well established. The Court must have regard to factors such as the length of, and reasons for, the delay, any prejudice to the respondent, and the merits – or lack thereof – of the proposed grounds of appeal.”
[9] Twentyman v Secretary, Department of Social Services [2018] FCA 1892 at [64].
Similarly, in Wekerle,[10] it was said that relevant “…considerations in assessing whether an extension of time for the filing of an application should be granted include the length of the delay, any explanation for the delay, any prejudice to the respondent and whether the application for review would have any prospect of success if the extension were granted.”
[10] Wekerle v Department of Home Affairs [2020] FCA 1300 at [6].
In Downing,[11] the factors of relevance to an extension of time application made in a context analogous to that currently under consideration were said to be “…in summary…as follows:
(1) While there is no requirement to show special circumstances, an extension should not be granted unless the court is satisfied that it is proper to do so. The prescribed period is not to be ignored.
(2) An acceptable reason for the delay is normally required.

(3) Any prejudice to the other parties, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of an extension. But the mere absence of prejudice is not enough to justify an extension.

[11] Downing v Minister for Immigration and Border Protection [2019] FCA 1684 at [5].
(4) The merits of the application or appeal that will proceed if an extension of time is granted should be taken into account.”
I turn now to consider how the principles or factors mentioned in these decisions apply in the current context.
LENGTH OF THE DELAY
It is not open to the Tribunal to simply ignore the fact that the legislature has prescribed a limited time within which to make review applications of the type sought to be pursued by the applicant.[12]
[12] Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 48 ALR 305 at 310; Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 530; Secretary, Department of Family and Community Services and Roberts [2003] AATA 269 at [10]; Budd and Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540.
As already mentioned, given that the applicant received notice of the decision which he seeks to have reviewed on 11 September 2020, he had until 10 November 2020 to lodge his application for review. As he lodged it on 26 February 2021, he was roughly three-and-a-half months late.
Being that late represents a not insignificant delay.
EXPLANATION FOR DELAY
Particularly in the context of such a delay, it is of importance (albeit not essential)[13] that there be an adequate explanation for it.[14] While the absence of such an explanation is not fatal to an extension application, it does weigh heavily against its grant.[15] An adequate explanation is normally to be expected.[16]
[13] Comcare v A’Hearn (1993) 45 FCR 441.
[14] In Makarov v Minister for Home Affairs [2020] FCA 734 at [36], it was said to be “a matter of common sense that the longer the delay the better the explanation will need to be”.
[15] Social Security, Secretary, Department of Van Dan Boogaart (1995) 37 ALD 619 at 261.
[16] Swanton and Military Rehabilitation and Compensation Commission [2017] FCA 1142 at [33].
As already noted, in Downing it was said that an “…acceptable reason for the delay is normally required.” In Singh, it was said to be “…always necessary to examine what explanation, if any, is given for delay and the adequacy of that explanation.”[17] In Matson, it was simply stated that an applicant for an extension of time in which to lodge a document “…must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time.”[18]
[17] Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 150 at [9].
[18] Matson v Australian Information Commissioner (No 2) [2021] FCA 690 at [118].
In this matter, the applicant proffered a number of explanations for the delay, none of which, whether alone or together, constitute an adequate explanation for the applicant’s delay.
Initially it was said on the applicant’s behalf that he “…had just been put on full time by the Respondent and was concerned at the possible impact that pursuing the claim further might have on his ongoing employment. Further, our client was feeling stressed and anxious about his situation and managing his injury…”[19]
[19] T2, p.7.
In fact, the applicant had not “just been put on full time”, having been employed full-time for around one year. Further, it is difficult to see how the applicant’s anxiety and stress precluded or inhibited his ability to lodge a review application with the Tribunal, noting that the applicant had managed:
(a)On 30 July 2020, to seek reconsideration of the initial determination which rejected his compensation entitlement claim.[20]
(b)On 31 July 2020, to seek an extension of the time frame within which to respond to an invitation to lodge further material in support of his claim, because he had upcoming medical appointments.[21]
(c)On 10 August 2020, to provide an update consequent upon his attendance on a hand surgeon.[22]
(d)To obtain further medical reports and provide them under cover of an email of 26 August 2020.[23]
(e)On 27 August 2020, to correspond about the process involved in the reconsideration of his claim.[24]
[20] T24, p.80.
[21] T26, pp.87-8.
[22] T27, p.91.
[23] T28, p.96.
[24] T29, p.99.
The applicant stated that he was concerned that, by pursuing his claim, he would put his employment at risk and cause management and other employees to treat him poorly (or, at least, worse than they had been treating him).[25]
[25] Statement of 18 June 2021 (“A statement”) [20].
There is no material before me suggestive of a substantive basis for the applicant’s concern and, I note, that concern did not preclude the applicant from pursuing a reconsideration of the initial determination that was adverse to his claim and from, ultimately, seeking the Tribunal’s review.
The applicant stated that he had contacted his union and had been told that they could not assist him unless he had undergone nerve conduction studies, which he could not afford.[26]
[26] A Statement [17].
I do not consider that a decision of a union to decline to assist a workers’ compensation claimant is an adequate explanation for delay in seeking review of a decision made in relation to the claim. In any event, the applicant’s contact with his union would appear – from his statement of 18 June 2021 – to have been made prior to the decision which he sought to have reviewed by the Tribunal.[27]
[27] Ibid, where the contact is said to have been made “around this time” – an apparent cross reference to the time in which the applicant had sought reconsideration of the initial determination to deny his claim.
The person who made the reviewable decision is said to have led the applicant to believe “that there would be no point in appealing the decision.”[28]
[28] Ibid [19].
Even accepting that a statement along those lines was made, it would hardly have been surprising to the applicant that the person who had just affirmed a decision to reject the applicant’s claim to be entitled to compensation considered the applicant’s prospects of successfully pursuing the claim to be somewhat dim. In any event, the making of such a statement was not such as to prevent the applicant from seeking legal advice on the matter (as he ultimately did).
The applicant states that he could not afford legal advice.[29]
[29] Ibid.
I do not consider that the absence of legal advice adequately explains a delay. The applicant was able to pursue his claim up to the reviewable decision stage without such advice and, ultimately, he did seek and obtain such advice. I note that accompanying the decision which the applicant is seeking to have reviewed was a document in which (as applied to the applicant) it was suggested that he may wish to contact his local legal aid office,[30] a suggestion which would not seem to have been taken up by the applicant (even if, as put on behalf of the applicant, it was unlikely that legal aid would have been forthcoming).
[30] T32, p.106.
The applicant states that he was “…hoping that I would make a good recovery once I had the surgery” and did not realise at the time how significant his condition would be, the extent of the medical treatment he would need or the extensive time that he would need off work.[31]
[31] A Statement [21].
The applicant’s expectation or hope that his then prospective surgery would be more successful than it ultimately proved to be and that his condition would thereby prove to be less problematic did not preclude the applicant from vigorously pursuing reconsideration of the initial determination adverse to his claim. It is, therefore, difficult to understand why it would have affected his capacity or willingness to make a timely application for review.
The applicant states that his work “was hectic because of the Covid 19 lockdowns.”[32]
[32] Ibid [22].
Covid-19 lockdowns did not prevent the applicant from pursuing reconsideration of the initial adverse determination and there is no material before me suggestive of the lockdowns being materially more significant in the period after the decision which the applicant seeks to have reviewed than they were after that determination was made.
The applicant states that the “… ADHD and my anxiety and depression made it hard for me to deal with my Claim.”[33]
[33] Ibid [23].
Insofar as the applicant suffers from these conditions, there is no material before me suggestive of them being of recent origin such that that they only affected the applicant’s consideration of his right to seek review from the Tribunal as opposed to his right to seek reconsideration of the initial determination denying his claim.
The applicant states that for “…about six weeks from 7 December 2020, I was recovering from my surgery. I was not in any state to make any decisions about my claim.”[34]
[34] Ibid [24].
I note that, in December 2020 when the surgery occurred, the applicant would already have been outside the time frame prescribed for the lodgement of an application for review. Moreover, this explanation only addresses six weeks of the roughly three-and-a-half months of delay.
The applicant was clearly advised of his right to seek to have the Tribunal review the decision of 11 September 2020 and of the time frame prescribed for the exercise of that right.[35] Apart from apparently contacting the relevant decision-maker, however, he did nothing about that right until well after that time frame had expired. As I see it, he simply sat on his rights. In such a situation, it is not appropriate for the Tribunal to grant the indulgence which he now seeks.[36]
[35] T32, p.105.
[36] Custodial Limited and Australian Securities and Investments Commission (2005) 88 ALD 510. See also Windram and Secretary, Department of Social Services (Social services second review) [2017] AATA 804 at [30].
PREJUDICE IN GRANTING EXTENSION
As I see it, while there would be no specific prejudice to the respondent were the applicant’s extension application granted,[37] there would be general prejudice to the public interest.
[37] The absence of prejudice to the respondent, indeed the absence of any prejudice, “does not warrant an order for extension of time”: Matson v Australian Information Commissioner (No 2) [2021] FCA 690 [127]. See also Lesianawai v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 896 [17].
The respondent claimed that it would suffer specific prejudice were the extension of time granted. No evidence of this was, however, provided, noting that nothing in this matter would render inapplicable the normal position that a party who claims to be prejudiced should adduce evidence showing its nature and extent.[38]
[38] Zizza v Commissioner of Taxation [1999] FCA 37.
As for general prejudice, granting the applicant’s extension application would be inconsistent with the public interest “…in the finality of litigation, and in resolving litigation in a timely fashion.”[39] Moreover, a failure to observe time limits for the review of administrative action also constitutes a failure “to assist the proper administration of government agencies”,[40] noting a public interest in a “need to prevent disruption to established practices.”[41]
[39] SZTOR v Minister for Immigration & Border Protection [2019] FCA 349 at [6] but cf Matson v Australian Information Commissioner (No 2) [2021] FCA 690 at [127].
[40] David v High Court [2009] AATA 448 [10]. See also Newell and Secretary, Department of Social Services (Social Services Second Review) [2021] AATA 1102 at [29].
[41] Mason and John Holland Pty Ltd (Compensation) [2018] AATA 415 at [31]; See also Hutchinson and Comcare (Compensation) [2018] AATA 4600 at [28].

On behalf of the applicant, it was submitted that he would suffer prejudice were his extension of time application refused. It is said that he will suffer financial prejudice, prejudice as a result of not being able to afford to undertake certain medical treatment and prejudice as a result of being denied the opportunity to seek to have his injury covered by workers compensation legislation.
As I see it, speculation in large part underlies this claimed prejudice, speculation that the applicant would succeed should his review application be pursued before the Tribunal. Further, the proximate cause of any such prejudice would be the applicant’s failure to seek review of the 11 September 2020 decision in a timely fashion rather than a decision of the Tribunal to refuse to grant an extension of time within which to do so.
MERITS OF UNDERLYING APPLICATION
As a general proposition it “will seldom be in the interests of the administration of justice to grant an extension of time where the proposed application has little or no prospects of success.”[42]
[42] DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10 at [57]. See also Wekerle v Department of Home Affairs [2020] FCA 1300 at [7].
This consideration does not, however, require, and nor would it be appropriate to endeavour to undertake, an in-depth assessment of the applicant’s claim. Rather, the “…applicant's proposed grounds should be considered on their face and examined at a 'reasonably impressionistic level'. If it appears from such an examination that the proposed review application has no realistic prospect of success, it would not ordinarily be in the interests of justice to grant an extension of time.”[43]
[43] Wekerle v Department of Home Affairs [2020] FCA 1300 at [7].
Here, assessed at an impressionistic level, I do not find that the applicant’s claim has little or no prospects of success.
Moreover, it may be as submitted on behalf of the applicant that “there a real issue in dispute” and that he has an arguable case but it is not my impression that that the applicant’s case is so strong as to weigh significantly in his favour.[44]
[44] SZUTY v Minister for Immigration and Border Protection (No 2) [2016] FCA 289 at [53] per Katzmann J: “… a strong case will weigh heavily in the applicant's favour”.
CONCLUSION
The applicant submits that his extension of time application ought to be granted when regard is had to the reason for his delay, the substantial prejudice he will suffer if the application is not granted, the absence of prejudice or minimal prejudice that would be suffered by the respondent and the fact that the applicant has an arguable case.
I do not accept that submission. The delay in seeking review was not insignificant, there was no adequate explanation for it, there would be some prejudice to the public interest were the extension application granted and the merits of the applicant’s claim (assessed at an impressionistic level) are not so strong as to weigh significantly in his favour.
In these circumstances, I am not satisfied that it is reasonable in all the circumstances to extend the time for the making by the applicant of an application for review of the 11 September 2020 decision.

1. I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the written reasons for the decision of Senior Member C.J. Furnell.

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Associate
Dated: 17 August 2021

Date of Interlocutory Hearing: 20 July 2021

Counsel for the Applicant:

Solicitors for the Applicant:

Kim Bradey

Angela Sdrinis Legal

Counsel for the Respondent:

Solicitors for the Respondent

Mark Seymour

McInnes Wilson Lawyers